Palestine Has Joined the International Criminal Court. Will Israel Face War-Crime Charges?

December 31, 2014

On Wednesday, Palestinian President Mahmoud Abbas delivered on a two-year-old threat to join the International Criminal Court (ICC). The move was a direct response to the United Nations Security Council’s rejection of a resolution to set a one-year deadline for peace talks with Israel, followed by the complete withdrawal of Israeli forces from the West Bank by the end of 2017.

In a televised ceremony from the Palestinian Authority headquarters in Ramallah, Abbas announced, “We want to file a complaint [against Israel]. We are being attacked. Our lands are being attacked every day. Who are we going to complain to? The Security Council has let us down. There’s an international organization and we’re going to it to complain.”

The Palestinians first turned to the ICC in 2009 with a request to investigate Israeli war crimes during Operation Cast Lead. But because Palestine was not a UN member state, their complaint was rejected. Full UN member status would have required approval from the Security Council (which always carries the threat of a U.S. veto). However, becoming a non-member observer only requires a majority vote from the General Assembly—in 2012, Palestine easily won that status with 138 out of 193 countries voting in its favor.

Despite Palestine's new status, Abbas held off on signing the Rome Statute after repeated warnings from the Americans and Israelis that doing so would jeopardize peace negotiations. But Abbas was simultaneously under fire from his own people for caving to Israeli demands. In April, he agreed to form a Fatah-Hamas unity government and signed on to fifteen international treaties and conventions (including the Geneva Conventions). Peace talks collapsed immediately.

After an initial 60-day waiting period, Abbas will be able to file cases at the ICC and seek war-crime charges against Israel—specifically, for the targeting of civilians during both Gaza wars and the illegal construction of Israeli settlements in the West Bank, East Jerusalem, and the Golan Heights. However, Israelis are likely to counter that rockets coming out Gaza are indiscriminate and that Hamas makes no effort to limit civilian casualties. “The one who should fear the International Criminal Court at the Hague is the Palestinian Authority, which is in a unity government with Hamas, a declared terrorist organization like ISIS that commits war crimes,” said Israeli President Benjamin Netanyahu after Wednesday’s announcement. He added that the Israeli Defense Forces is the “most moral army in the world.”

Precedent suggests that Palestine’s ascension to the ICC will amount to little more than a symbolic display of sovereignty. As The Washington Post editorial board noted, the ICC accused Sudanese President Omar al-Bashir of genocide, crimes against humanity, and war crimes in 2009. Yet, he continues to rule the country and travel freely. Since its inception in 2002, the ICC has brought a total of 21 cases in eight countries, resulting in only two convictions. Even if the ICC does decide to indict specific Israelis for war crimes, Israel is not party to the Rome Statute and could refuse to surrender its citizens or evidence for trials.

At this point, Palestine had little to lose by joining the court. It comes at a time when international support for Palestinian sovereignty is expanding, as is disillusionment with Israel’s continued occupation. While this decision is in direct defiance of the U.S. (the biggest donor to the United Nations Palestinian Relief Agency), the Americans are unlikely to pull funding. In June, Netanyahu and a slew of GOP congressmen called for the Obama administration to cut Palestinian aid in response to the unity government with Hamas, claiming that continued funding would amount to support for terrorism. But State Department spokeswoman Jen Psaki insisted that the interim government did not include any ministers affiliated with Hamas and vowed to continue funding the Palestinian government. To the U.S., monetary support to Palestine is strategic as well as humanitarian, as it allows them to continue to lead the peace process with some buy-in from both sides.

The latest State Department position is that the Palestinian move “will badly damage the atmosphere with the very people with whom they ultimately need to make peace”—an essentially meaningless statement that is far short of the condemnation Netanyahu and Congress would expect.